Abortion and Divorce in Western Law by Mary Ann Glendon

First published: Cambridge, Mass.: Harvard University Press, 1987

Genre: Nonfiction

Subgenre: Didactic treatise

Core issues: Abortion; ethics; justice; marriage; women

Overview

Comparative law is the study of the laws and legal systems of different nations in order to deepen understanding of a particular nation’s laws. This field was systematically developed by French and German scholars in the late nineteenth century. In Abortion and Divorce in Western Law, Harvard law professor Mary Ann Glendon uses the methods of comparative legal scholars to explain the distinctive elements of American laws regarding abortion and divorce. As she explains in the introduction, she also adopts the perspective taken in Plato’s Nomoi (388-368 b.c.e.; Laws, 1804) that law is educational in purpose so that she can illuminate the differences between American and European law. Although Glendon does highlight provisions of abortion and divorce laws of European nations, in particular France and Germany, she does so largely to put American law in contrast and specifically to demonstrate that American law has embraced an extreme individual rights position on the legal spectrum.

Chapter 1 demonstrates how the laws regarding abortion in the Western world changed dramatically in the 1970’s and 1980’s. Of the twenty nations compared by Glendon (Austria, Belgium, Canada, Denmark, England, Finland, France, West Germany, Greece, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and the United States), the great majority abandoned strict abortion laws dating from the nineteenth century and adopted more permissive ones. Although these countries widely allow abortion, the United States goes furthest in content and characterization in its abortion laws. Only American law rejects any effort to preserve the fetus before viability and severely restricts regulation after viability. In social policy, the United States provides almost no direct social benefits to mothers, married or unmarried. In constitutional law, although legislation protecting fetuses is permitted in countries such as West Germany, the United States Supreme Court decision Roe v. Wade (1973) prohibits any state or federal law limiting the right to abortion. Even in its language, the Court refused to acknowledge issues of developing life, avoiding such questions as whether the fetus is human or alive. In contrast to European nations, which emphasize the social interest in abortion law, the United States treats abortion as a constitutional right of legal interest only to private, autonomous individuals. Glendon states that the American laws regarding abortion would most likely tell a different story, placing higher importance on the value of life, if individual states were allowed to take a legislative role in balancing the interest in fetal life with a woman’s liberty or privacy interests.

Like abortion, divorce—the topic of chapter 2—became more readily accessible in the 1970’s and 1980’s. Family law during this period was characterized by the withdrawal of legal control over the formation, benefits and burdens, and termination of marriage. The most striking pattern was movement in all twenty nations toward a system of no-fault divorce and away from a requirement of moral turpitude—adultery, desertion, cruelty—by one of the spouses as the grounds for dissolution of marriage. The United States, as it had with abortion laws, produced some of the most permissive divorce laws. Only Sweden rivals the United States in the ease of obtaining a unilateral, no-fault divorce, and the United States is alone in detaching its legal and social system from the economic consequences of divorce. Glendon writes that just as American abortion law tells the story of disregard for potential life, American divorce law communicates a message of the end of marriage with no blame attached, with almost reckless disregard for ensuring a fair level of child support, and with no public or private responsibility for the difficult economic circumstances that ensue.

In the third and final chapter, Glendon seeks to explain why in the transformation of abortion and divorce laws beginning in the late 1960’s, the United States went the furthest among Western nations in removing regulation and public and private responsibility from its laws. Part of the explanation can be found in the American traditions of individualism, mobility, and self-reliance. While attractive qualities, these traditions tend to sap a sense of community and diminish the role of mediating institutions that in Europe have legal standing between the individual and the state. In addition, the Anglo-American tradition of legal positivism—beginning with Thomas Hobbes, gaining strength in the liberal philosophies of Jeremy Bentham, John Austin, and John Stuart Mills, and reaching culmination in Oliver Wendell Holmes, Jr.— draws a sharp distinction between law and morality. Thus the educational and persuasive value of law, always part of the continental tradition, was sheared from American jurisprudence, which described law as solely the external command of the sovereign. Finally, the United States, unlike Europe, lacks the tradition of explicit family policies and programs fostered by the government and by national private and semiprivate organizations.

The final section of Abortion and Divorce in Western Law is the appendix, which summarizes the abortion laws of the twenty Western nations.

Christian Themes

Abortion and Divorce in Western Law is an academic study in comparative family law and is not an explicitly Christian work. However, its subject matter, abortion and divorce, are considered by most Christians to be crucial social questions relating to their religious faith. In addition, Glendon is a leading American lay Catholic, so it is not surprising that her study raises issues of critical importance to Christians and contains a certain Christian perspective.

The legalization of abortion is a relatively recent phenomenon in the West, but Christian ethics has always addressed this and other questions of human life and procreation. Few issues would seem to divide many Christians from contemporary legal norms as what is viewed as abortion on demand. Glendon criticizes America’s disregard for the value of life or potential life in the name of abortion rights, and she contrasts the support pregnant European women receive, consistent with these nations’ religious history of community support, with the lack of a family social net for pregnant women in the United States. Likewise, in questions of divorce, the Christian tradition has applied Jesus’ command in marriage that “what God hath joined together, let no man put asunder” (Matthew 19:6). Certainly canon law and the law of most Christian nations forbade most forms of marital dissolution until contemporary times. Again, Glendon’s critique of the modern “no-responsibility divorce” would be echoed by most Christian ethicists.

The extreme nonregulatory position in American abortion and divorce law cannot be explained in religious terms. However, the American emphasis on individualism and freedom from government interference is traceable at least in part to the Protestant Reformation with its emphasis on the individual relationship between each person and God without intermediaries, thereby de-emphasizing institutions that have a tradition of family support. Likewise, Glendon notes that Hobbes, to whom she traces the beginning of the Anglo-American philosophy separating morals from law, consciously broke with the traditional Christian view of humankind and society and with its idea of law as the perfection of reason. Glendon looks to the classical tradition of Plato’s Laws as the epitome of law as educator of the citizenry regarding virtue. Her comparative study implies, however, that in the modern American equation of law as raw power from which the individual must be liberated, the American law of abortion and divorce has deviated not only from traditional ethics but also from the traditional legal ordering of Christian nations.

Sources for Further Study

Glendon, Mary Ann. The Transformation of Family Law: State, Law and Family in the United States and Western Europe. Chicago: The University of Chicago Press, 1989. In this later work, Glendon details the dramatic transformation of family law referred to in Abortion and Divorce in Western Law, particularly in England, France, the United States, and the former West Germany.

Santorum, Rick. It Takes a Family: Conservatism and the Common Good. Wilmington, Del.: ISI Books, 2005. By a United States senator, this book responds from a conservative perspective to Glendon’s description of family law as a web of social, economic, and moral connections.

Shrage, Laurie. Abortion and Social Responsibility: Depolarizing the Debate. Oxford, England: Oxford University Press, 2003. This book calls for modification of America’s abortion laws along the lines of other Western nations and endorses Glendon’s encouragement of the establishment of a greater family security net in the United States.

Zweigert, Konrad, and Hein Kötz. An Introduction to Comparative Law. Translated by Tony Weir. Oxford, England: Clarendon Press, 1998. The definitive textbook in the field of comparative law, containing the methodology for Glendon’s study.